California’s Net Neutrality Law: What’s Happened, What’s Next

Over the weekend, Gov. Jerry Brown signed S.B. 822, which guarantees strong net neutrality protections for citizens of California. Within hours, however, the federal government announced its intention to sue California for stepping in where the feds have abdicated responsibility. What happens next is going to be full of procedural issues and technicalities.

First, some background. Millions of Americans opposed the Federal Communications Commission’s (FCC) decision to abandon its authority to enforce net neutrality, competition, and privacy under its Restoring Internet Freedom Order. An expected response to a widely condemned federal act is for the states to take action themselves. And they did.

To date, 30 state legislatures have introduced bills that would require their Internet Service Providers (ISPs) to maintain net neutrality as a matter of law. Four of those states (Washington, Oregon, Vermont, and now California) have passed laws with strong bipartisan majorities, and more are promising to follow suit in 2019. Six state governors (Montana, New York, New Jersey, Hawaii, Vermont, and Rhode Island), led by Gov. Steve Bullock of Montana, have issued Executive Orders declaring that the state’s government will not do business with ISPs that violate net neutrality.

California’s law represents a tremendous victory, by real people, over a few giant corporations. ISPs such as AT&T, Comcast, and Verizon poured millions into the fight in Sacramento, and, for a moment, it even looked like the bill had been eviscerated. But Californians who believe in a free and open Internet spoke out and strong net neutrality protections were restored. And they kept speaking out, getting the bill passed in the State Senate, the State Assembly, and, finally, getting it signed by the governor.

Now the FCC and Department of Justice (DoJ) have stepped in to quell the rebellion. Just hours after California’s Governor Brown signed into law S.B. 822, the DoJ and FCC filed their lawsuit to block its implementation.

Can States Protect Net Neutrality? The D.C. Circuit May Decide

If you read the fine print of the DoJ and FCC arguments, the thrust against California is not whether states can pass net neutrality laws but rather whether a pending lawsuit in the D.C. Circuit (to which the California Attorney General is a party), which challenges the FCC’s 2017 repeal of net neutrality protections, should be given priority in deciding state power. Their motion for a preliminary injunction—a legal hold on S.B. 822—explicitly states that the “legal validity cannot be adjudicated in this Court.” In other words, this lawsuit cannot decide the legality of California’s law, at least until the case in the D.C. Circuit is decided. If that argument prevails, it simply means that California’s law is temporarily paused until the D.C. Circuit issues its opinion.

The Department of Justice Drinks the FCC’s Kool-aid

The more substantive argument is this: Based on the same factually wrong history of ISP regulation that the FCC along with cable and telephone lobbyists like to cite, the DoJ insists that the FCC has authority to abandon its oversight role but simultaneously prevent states from filling that vacuum. EFF and other legal experts disagree. For one thing, the power to preempt is related to the power to regulate in the absence of an express statement by Congress. The federal Communications Act says very little about preemption and a whole lot about states’ rights. By abandoning its authority over Internet service providers, the FCC also abandoned any power to preempt state laws.

Related Updates

When the FCC announced its intention to repeal the 2015 Open Internet Order, Americans spoke up. When the FCC ignored the fact that most Americans support net neutrality, Americans spoke up again, asking Congress to reverse the FCC’s decision. And the Senate listened. This fight continues in...

Oakland residents, we need your stories and experience to continue the fight to stop powerful Internet Service Providers (ISPs) from limiting your ability to choose the service that’s best for you. Submit Your Story If you live in Oakland and have had trouble acquiring service from the ISP...

The majority of Americans support net neutrality protections. Based on the comments in the most recent Congressional hearing on net neutrality, you could come away with the idea that most of Congress and most of the giant Internet Service Providers do, too. But if you read between the lines...

Public Interest Advocates, Local Governments, and Others Defend the Open Internet Order The Court of Appeals for the D.C. Circuit heard the case of Mozilla v. FCC today to determine whether the Federal Communications Commission (FCC) is allowed to repeal its net neutrality rules and abandon its authority over the...

In the waning hours of 2017, the Federal Communications Commission voted to repeal the 2015 Open Internet Order, ending net neutrality protections for the millions of Americans who support them. The fallout of that decision continued all throughout 2018, with attempts to reverse the FCC in Congress, new state laws...

Almost exactly a year ago, the Federal Communications Commission (FCC) voted to strip net neutrality protections from the Internet and reclassify Internet Service Providers as an “information service” rather than a “common carrier” telecommunications one. This year, the FCC has voted to classify text messaging the same way. This...

Your strong support helped us persuade California’s lawmakers to do the right thing on many important technology bills debated on the chamber floors this year. With your help, EFF won an unprecedented number of victories, supporting good bills and stopping those that would have hurt innovation and digital freedoms. Here’s...